Bankruptcy Law

As soon as the property of the claiming owner is in the hands of a third party, who holds it for his own account, the latter may avail himself of the provisions of Article 2276(1) of the Civil Code, which provides that in the case of movable property possession is equivalent to title, in order to oppose the claim.
Thus, a pledgee, a presumed good faith possessor, who is not obliged to ascertain, a …

Third party holder

As soon as the property of the claiming owner is in the hands of a third party, who holds it for his own account, the latter may avail himself of the provisions of Article 2276(1) of the Civil Code, which provides that in the case of movable property possession is equivalent to title, in order to oppose the claim.

Thus, a pledgee, a presumed good faith possessor, who is not obliged to ascertain, at the time of the creation of the pledge, that the goods held by the debtor are not encumbered by a title retention clause, may set up his right of retention against the seller with retention of title, in order to prevent his action to claim the thing . Whenever the third party holder is considered to be in good faith, the owner will be deprived of the right to claim his property, since the provisions of Article L. 624-16 do not derogate from those of Article 2276 .

On the other hand, if the third party does not hold the goods in good faith, the owner may base his claim on paragraph 2 of Article 2276, which gives him an action for reclaiming the goods for a period of three years from the date of the loss or theft, against the person in whose hands he finds them, except for the latter's remedy against the person from whom he holds them. Since the owner of goods, sold under reservation of title, bases his claim on the provisions of Article 2276 of the Civil Code and not on those of Article L. 624-16 of the Commercial Code, there is no need to investigate whether the goods are found in kind in the assets of the sub-purchaser at the time of the opening of his insolvency procedure, but only to verify whether he came into possession of them in bad faith . The claim of the bank subrogated to the rights of the seller with reservation of title in a good transferred to the debtor, directed against the sub-purchaser who was aware of its prior possession by a person who did not own it, is admissible since only possession free of defects by the sub-purchaser himself or by another person can prevent the claim .

Article 2286 of the Civil Code also provides for a right of retention in favor of a person to whom the thing has been delivered until payment of his claim, or whose unpaid claim arises from the contract which obliges him to deliver it, or whose unpaid claim has arisen from the holding of the thing, or who benefits from a pledge without dispossession. A real right, opposable to all, including third parties who are not bound by the debt, the right of retention in Article 2286 allows the holders of property belonging to the debtor, the sale price of which has not been paid in full by the latter, to legitimately oppose the restitution of the disputed equipment, until they have been paid in full for their claim to occupation indemnity, which arose from the holding of the equipment .

Cass. com., 26 May 2010, LawLex202100001720JBJ (LJ) ; 11 September 2012, LawLex202100003381JBJ (LJ) ; 3 October 1989, LawLex202100003380JBJ (LJ).

Cass. com., 19 May 1987, LawLex202100001716JBJ (LJ).

Cass. com., 17 November 2021, LawLex202200000405JBJ, LawLex202200000610JBJ, LawLex202200000609JBJ (LJ).

Cass. com., 5 March 1996, LawLex202100001721JBJ (LJ).

Cass. 1re civ., 20 December 2017, LawLex202100003438JBJ (LJ).

Bankruptcy Law

223. Third party holder

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

223. Third party holder

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise